The culture war regarding same sex marriage

Guest Post

Barukh Dayan Emes: American civil freedom, a"h -

"Washington State [Supreme] Court Rules Florist Broke The Law By Refusing To [Service] Gay [Marriage]"

The Supreme Court dissenters on the same sex marriage decision -- all four of them, in fact -- cautioned us ominously regarding the culture war that their five colleagues' travesty of justice would fuel.  I excerpt them below, with parts highlighted germane to religious liberty.  (The dissents in their entirety can be found here, as can the Majority Opinion to which they reply.)

Justice ALITO gave an interview only a few months after the decision in which he spelled out the confusion wrought upon society when its laws are adjudicated without clear parameters - see last 7min of this interview.

In his own dissent to the same-sex marriage decision, Alito writes,

[This] decision will [...] be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women.  The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.  Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected.  We will soon see whether this proves to be true.  I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools. 

The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not.  It is also possible that some States would tie recognition to protection for conscience rights.  The majority today makes that impossible.  By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas.  Recalling the harsh treatment of gays and lesbians in the past, some may think that turn-about is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds.

[...] Most Americans--understandably--will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends.

Justice THOMAS' dissent notes this issue of religious strife in pretty much the same terms:

Numerous amici--even some not supporting the States--have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.”  In our society, marriage is not simply a governmental institution; it is a religious institution as well.  Today’s decision might change the former, but it cannot change the latter.  It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples.  The majority appears unmoved by that inevitability.  It makes only a weak gesture toward religious liberty in a single paragraph.  And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons...as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”  Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.

Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate. Had the majority allowed the definition of marriage to be left to the political process--as the Constitution requires--the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process.  Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty. 

Chief Justice ROBERTS, in his plurality dissent speaks for all four (i.e., they all joined with his dissent (also the longest), which accordingly follows the Majority Opinion first in the Court filing) when he writes as follows:

Today [...] the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage.  Many people will rejoice at this decision, and I begrudge none their celebration.  But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening.

[...] It can be tempting for judges to confuse our own preferences with the requirements of the law.  But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.”  The majority today [...] seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question.  And it answers that question based not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become.”  I have no choice but to dissent.  Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.  

[...] Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description--and dismissal--of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone.  What would be the point of allowing the democratic process to go on?  It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.”  The answer is surely there in one of those amicus briefs or studies.  

Those who founded our country would not recognize the majority’s conception of the judicial role.  They, after all, risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges.  And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.”

The Court’s accumulation of power does not occur in a vacuum.  It comes at the expense of the people.  And they know it.  Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage.  They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew.  They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse.  They see countries overseas democratically accepting profound social change, or declining to do so.  This deliberative process is making people take seriously questions that they may not have even regarded as questions before.  When decisions are reached through democratic means, some people will inevitably be disappointed with the results.  But those whose views do not prevail at least know that they have had their say, and accordingly are--in the tradition of our political culture--reconciled to the result of a fair and honest debate.  In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again.  But today the Court puts a stop to all that.  By deciding this question under the Constitution, the Court removes it from the realm of democratic decision.  

There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.  [...] Today’s decision creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is--unlike the right imagined by the majority--actually spelled out in the Constitution.  Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice.  The majority’s decision imposing same- sex marriage cannot, of course, create any such accommodations.  The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage.  The First Amendment guarantees, however, the freedom to “exercise” religion.  Ominously, that is not a word the majority uses.  

Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage--when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples.  Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.  There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today.

Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate.  The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage.  That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demean or stigmatize” same-sex couples.  The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history--in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage--have acted to “lock out,” “disparage,” “disrespect and subordinate,” and inflict “dignitary wounds” upon their gay and lesbian neighbors.  These apparent assaults on the character of fairminded people will have an effect, in society and in court.  Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted.

The recently departed Justice SCALIA, who expressly joined all three other dissenters, in his personally authored dissent was, as usual, the most scathing.  But his appendixed dissent focuses less on the issue of the Court participating in or fueling culture warfare.  It does, however, warn as follows:

[...W]hat really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.  They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since.  They see what lesser legal minds--minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly--could not.  They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.”  These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until fifteen years ago, cannot possibly be supported by anything other than ignorance or bigotry.  And they are willing to say that any citizen who does not agree with that, who adheres to what was, until fifteen years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

[...] Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall.  The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments” (Alexander Hamilton, Federalist No. 78).  With each decision of ours that takes from the People a question properly left to them--with each decision that is unabashedly based not on law, but on the “reasoned judgment” [their words] of a bare majority of this Court--we move one step closer to being reminded of our impotence.

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